There was substantial evidence of DUI implied malice murder where the defendant’s impairment was brought about by drug withdrawal. Approximately 12 hours after he ingested methamphetamine, defendant drove his car. As defendant withdrew from the effects of the drug, he fell asleep, lost control of his car, and struck two pedestrians, killing them. A jury found him guilty of two counts of second degree murder and other offenses; it sustained allegations of prior DUI convictions. The trial court found a strike and other priors true. On appeal he claimed that “withdrawing” from the effects of methamphetamine does not constitute driving “under the influence” of the drug. Held: Affirmed. A person is under the influence of methamphetamine when, as a result of using the drug, his mental or physical abilities are impaired to a degree that he no longer has the ability to drive his car with the caution characteristic of a sober person under the same or similar circumstances. Substantial evidence showed defendant smoked methamphetamine at some time before the accident and subsequently went into drug withdrawal, which resulted in defendant falling asleep at the wheel and killing two people. The prosecution did not need to prove that the defendant was in the first “excited” phase of intoxication. Defendant had three prior DUIs, had received judicial admonitions about the dangers of driving under the influence, and had attended classes in which he was warned of the dangers of drug-impaired driving. Substantial evidence supported the finding defendant drove while drug impaired with conscious disregard for life.

Evidence derived from defendant’s warrantless blood draw was not subject to exclusion. Citing Missouri v. McNeely (2013) 133 S.Ct. 1552, defendant sought to suppress evidence derived from a warrantless blood draw. In Smerber v. California (1966) 384 U.S. 757, the Court held that, absent an emergency, a warrant was required to draw blood from a suspect. The Court determined in that case that the dissipation rate of alcohol in the blood constituted an emergency that justified the warrantless search. Post-Smerber, California cases interpreted it to mean that no exigency beyond the natural evanescence of intoxicants in bloodstreams was required to establish an exception to the warrant requirement. However, McNeely repudiated this interpretation of Smerber, finding the analysis must be based on a case-by-case assessment of exigency, and that this had always been the law. Whether the totality of the circumstances reflected exigency in this case need not be determined, however, because the blood draw in this case occurred before McNeely was decided and binding appellate precedent specifically authorized the practice employed by the police here. Under these circumstances, suppression of the evidence would not deter future Fourth Amendment violations and would have no beneficial effect. The blood draw fell within the “good faith” exception to the exclusionary rule. (See Davis v. U.S. (2011) 131 S.Ct. 2419 .)